A conference on transitional justice suggests Israel and the Palestinians look to countries like South Africa.

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Now that the eight-day conflict in Gaza has ended and a cease-fire is in place,
how can Israel and the Palestinians avoid another round? Some would say the
question itself is naïve and that we are stuck in an eternal war. Others would
say we need incremental peace negotiations focused on borders first, and to
address the thorniest problems sometime down the road.

A recent
conference on transitional justice presents a whole new way of looking at the
Israeli-Palestinian peace process, unconventionally suggesting addressing the
Palestinian refugee issue and recognition of Israel as a Jewish state up
front.

The Palestinians demand
the right of return of, in theory, millions of refugees.

No Israeli prime
minister, Right or Left, would allow this, arguing that any such return would
destroy the Jewish state.

Israel demands recognition, not just for its
right to exist (already done in the Oslo Accords) but specifically as a Jewish
state.

No Palestinian is willing to do this, arguing that they already
recognized Israel’s right to exist and that adding the words “Jewish state”
renounces the rights of one million Israeli Arabs and negates the Palestinian
historical narrative.

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But proponents of applying transitional justice
ideas to the Israeli-Palestinian conflict say we can learn from other countries
that have resolved conflicts between different ethnic groups.

They say
Palestinians can recognize the importance to Jews of the “ingathering of the
exiles,” as an indirect way of recognizing the Jewish historical narrative,
without the same problem caused by using the phrase “Jewish state”
specifically.

Next, they say Israel can recognize Palestinian pain and
suffering during the “Nakba” without agreeing to an actual right of
return.

They say that doing this up front could be a game-changer in
moving forward with negotiations on all issues.

The Jerusalem Post spoke
to Hassan Jabareen, a leading Israeli-Arab human rights lawyer and head of
Adallah, the Legal Center for Arab Minority Rights in Israel, and to academic
and legal practitioner Sigal Horovitz after attending a conference sponsored by
Hebrew University’s Faculty of Law and Minerva Center for Human Rights. The
program was the first in transitional justice offered by a university in Israel
(and run by Horovitz.) “Transitional justice” refers to the process that other
war-torn countries used to address past injustices between the groups. It can
vary from bringing individuals on both sides to trial to forgiving both sides
based on public confession in order to reconcile and move forward beyond those
injustices.

Jabareen said that transitional justice presents the
Israeli-Palestinian conflict with lessons in how other parties that were stuck
in intractable conflicts, such as in Northern Ireland and South Africa, resolved
their conflicts. From that perspective, studying transitional justice in other
countries represents a window into how other warring parties altered their
mindsets and addressed or moved beyond past injustices. This in spite of the
fact that they were still in the heart of resolving their fundamental
differences, implied Jabareen.

“Today, at least both groups can
acknowledge that both sides will live here forever and there will be no total
defeat of the other group,” he noted – a significant jump from where the two
sides were in their expectations not long ago.

But he insisted that
Israelis must at least recognize the pain of the Palestinians from losing their
villages in the 1948 War of Independence, referred to in Arabic as the Nakba
(“Catastrophe”).

This idea would appear to be a nonstarter for Israel and
would sound foreign to most immediately after another round of war. But what if
recognizing the Nakba actually had the opposite effect? What if Israel’s
recognition of the Nakba might in fact allow the Palestinians to move on and to
renounce their right of return in practice? While Jabareen was unwilling to
state directly that recognition of the Nakba might pave the way to Palestinians
renouncing the right of return, he provided an analogy from South
Africa.

He noted that if you had asked a black South African under
apartheid in the 1980s if he would give amnesty to everyone on the other side,
he would have said no. “But once they had reconciled and recognized some of the
past injustices,” a new dynamic was created, he said.

Pressed, Jabareen
did at least imply that such a change in the Palestinian national mindset could
lead to accepting alternatives to an actual return.

But what Israeli
prime minister would consider such recognition before the Palestinians renounce
an actual right of return? (Even leaving aside the question of injustices to
Jews during the War of Independence and to hundreds of thousands of Jewish
refugees from Arab countries in the years after.) Horovitz, who spoke at the
conference and then spoke to the Post afterwards, says, shockingly, that a major
Israeli government sponsored commission already did – and without “the sky
falling.”

The Or Commission, which investigated the death of 13 Israeli
Arabs during riots in the North in October 2000, held 92 hearings over twoand-
a-half years, submitting a report of over 700 pages in 2003.

Horovitz
said the report was “courageous,” among other reasons because it recognized key
points in the narratives of both sides.

On one hand, the report told
Arabs that they “must understand the essence of ingathering of the exiles is
important” in recognizing the Jewish narrative, said Horovitz.

On the
other hand, he said that the report told Jews that “they must understand that
the same process transformed Arabs into a minority” and the losers of a war, of
their villages and their homes.

Horovitz implies that other conflict
situations suggest that the Palestinians could be ready to recognize Israel as a
homeland for the Jews if Israel recognized the same for Palestinians and the
pain of the Palestinian defeat in the 1948 war.

Why must Jews recognize
the Palestinian defeat when the Jewish narrative holds that 1948 was a war of
survival from five armies trying to push the Jews into the sea? Horovitz
essentially responded: because Israel won and reaped the benefits of
victory.

The entire idea of addressing such hot-button issues seems
foreign right after a war and when the sides cannot even sit together to resolve
joint water issues.

However, Dr. Jona Bargur of the Forum of Bereaved
Israeli and Palestinian Families for Peace and Reconciliation, who also spoke at
the conference, has a different take. He says he visits schools around the
country, telling students they should be optimistic and that if he “has not
given up hope at 76 and after what he has been through,” they “should not give
up at the young age of 18.”

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